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[the house of peers (c), he was placed on the upper end of the earls' bench (on which the dukes usually sit), next to his royal highness the Duke of York.

In the year 1718, upon a question referred to the judges by King George the First, it was resolved, that the education and care of the king's grandchildren, while minors, did belong of right to his majesty, as king of this realm, even during their father's life (d), and further that the care and approbation of their marriages, when grown up, belonged to the king their grandfather; and the judges more recently concurred in the opinion, that this care and approbation extended also to the heir presumptive to the crown, though to what other branches of the royal family the same did extend, they did not find precisely determined (e). The most frequent instances of the Crown's interposition, however, go no further than nephews and nieces, although examples are not wanting of its reaching to more distant collaterals; and the alleged (f) statute of 6 Hen. VI. (1427), which prohibits the marriage of a queen dowager without the consent of the king, assigns this reason for it, namely, "because the disparagement of the queen shall give greater comfort and example to other ladies of estate, who are of the "blood royal, more lightly to disparage themselves" (g).] Therefore, by the 28 Hen. VIII. (1536), c. 18, (repealed by the 1 Edw. VI. (1547), c. 12) it was made treason for any man to contract marriage with the king's children or reputed children, his sisters or aunts ex parte paterna, or the children of his brothers or sisters. And now, by the Royal Marriage Act, 1772, no descendant of the body of King George the Second, (other than the issue of princesses married into foreign families,) is capable of contracting matrimony without the previous consent of

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(c) Lords Journ. 10th Jan. 1765. (d) Fortesc. Al. 401-440.

(e) Lords

Journ. 28th Feb.

(ƒ) P. 461, supra.
(g) Ril. Plac. Parl. 672.

[the monarch, signified under the great seal and declared in council. Any marriage contracted without such consent is void; and all persons solemnizing, assisting at, or being present at, any such prohibited marriage, incur the penalties of the statutes of præmunire. Nevertheless, any such descendant who is above the age of twenty-five may, after a twelvemonth's notice given to the privy council, contract and solemnize marriage without the consent of the Crown; unless both houses of parliament shall, before the expiration of the year, expressly declare their disapprobation of the intended marriage.]

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CHAPTER V.

OF THE ROYAL COUNCILS, AND OF THE OFFICERS
OF STATE.

[THE king, in order to assist him in the discharge of his duties and in the maintenance of his dignity, hath assigned to him a diversity of councils.

1. The first and principal of these is the high court of parliament, which we have already sufficiently considered (a).

2. Secondly, all the peers of the realm are by their birth hereditary counsellors of the Crown, and may be called together by the king to impart their advice in matters of importance to the realm, either in time of parliament, or (which hath been their principal use in times past) when there is no parliament in being (b). It is laid down in our law books that peers are created for two reasons: (1) ad consulendum regi (tempore pacis); and (2) ad defendendum regem (tempore belli). On which account the law gives them certain great and high privileges, such as freedom from arrest in civil cases, even when no parliament is sitting; because the law intends that they are always assisting the king with their counsel for the commonwealth, or keeping the realm in safety by their prowess and valour (c).

Instances of conventions of the peers, to advise the Crown, have been in former times very frequent, though

(a) Vide sup. ch. i. of this Act. (b) Co. Litt. 110a.

(c) Earl of Shrewsbury's Case (1610), 9 Rep. 49a. See further, as

to civil cases, the authorities cited, sup. p. 373, note; and, as criminal proceedings, sup.

to
P. 374.

[now fallen into disuse by reason of the more regular meetings of parliament. Sir Edward Coke (d) gives us an extract of a record, 5 Hen. IV., concerning an exchange of lands between the king and the Earl of Northumberland, wherein the value of each was agreed to be settled by advice of parliament (if any should be called before the feast of Saint Lucia), or otherwise by advice of the grand council of peers, which the king promises to assemble before the said feast, in case no parliament shall be called. Many other instances of this kind of meeting are to be found under our antient kings; though the formal mode of convoking them had been so long left off, that when King Charles the First, in 1640, issued out writs under the great seal to call a great council of all the peers of England to meet and attend his majesty at York, previous to the meeting of the long parliament, the Earl of Clarendon mentions it as a new invention, not before heard of-that is, as he explains himself, so old that it had not been practised for some hundreds of years (e). But, though there had not so long before been an instance, nor has there been any since, of assembling them in so solemn a manner, yet in cases of emergency our princes have at several times thought proper to call for and consult as many of the nobility as could easily be got together; as was particularly the case with King James the Second, after the landing of the Prince of Orange, and with the Prince of Orange himself, before he summoned that convention parliament which afterwards called him to the throne.

Besides this general meeting, it is usually considered to be the right of each particular peer of the realm to demand an audience of the king, and to lay before. him, with decency and respect, such matters as he shall judge of importance to the public weal. And, in the reign

(d) Co. Litt. 110 a.

(e) Hist. b. 2, at P. 223 (ed. 1819).

[of Edward the Second, it was made an article of impeachment against the two Hugh Spencers, father and son, for which they were banished the kingdom, "that they by "their evil covin would not suffer the great men of the "realm, the king's good counsellors, to speak with or to "come near the king; but only in the presence and hearing of the said Hugh the father and Hugh the son, or one of them, and at their will, and according to such "things as pleased them "(ƒ).

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3. A third council belonging to the king is the council of his judges for law matters (g). Where, therefore, the king's council is mentioned generally, it must be understood secundum subjectam materiam. Accordingly when, by the Statute of Præmunire, 1392, it was made a high offence to import into this kingdom any papal bulls, or other processes from Rome, and the offenders were directed to be attached by their bodies, and brought before the king and his council to answer for such offence, the "king's council" was understood to be the judges of his courts of justice, the subject-matter being legal] (h). A trace of the "council of judges" is to be found in the writ of attendance which the judges receive at the commencement of each parliament.

[4. But the principal council of the king is his privy council, which is generally called, by way of eminence, the Council. And this, according to Sir Edward Coke's description of it, is "a most noble, honourable, and reverend assembly of such as the king wills to be of his privy council in his court or palace” (i).

(ƒ) 4 Inst. 53.

(g) Co. Litt. 110 a.

(h) 3 Inst. 125. Coke's interpretation is extremely doubtful. In Coleridge's Blackstone (vol. i. p. 229) it is suggested that the 66 council" referred to was a court of very extensive jurisdiction, both civil and criminal, and

was the source from which the Court of Chancery and the Star Chamber sprang. Hale omits the "council of the law" from his enumeration of royal councils, his concilium ordinarium being different from Coke's "council of the law."

(i) 4 Inst. 53.

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